[Federal Register Volume 64, Number 244 (Tuesday, December 21, 1999)]
[Rules and Regulations]
[Pages 71267-71270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33059]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 99-075-2]


Mexican Fruit Fly; Regulated Areas, Regulated Articles, and 
Treatments

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the Mexican fruit fly regulations by adding a 
portion of San Diego and Riverside Counties, CA, to the list of areas 
regulated because of the Mexican fruit fly. This action is necessary on 
an emergency basis to prevent the spread of the Mexican fruit fly into 
noninfested areas of the United States. This action restricts the 
interstate movement of regulated articles from the regulated area. We 
are also amending the regulations to provide for the use of a new 
alternative chemical treatment for premises and for the use of a cold 
treatment for citrons, litchis, longans, persimmons, and white zapotes, 
which are all regulated articles. These new treatment options will 
minimize the effect of restrictions on the interstate movement of 
regulated articles from regulated areas. We are also removing kumquats 
from the list of regulated articles. We have determined that kumquats 
do not pose a risk of hosting the Mexican fruit fly.

DATES: This interim rule was effective December 14, 1999. We invite you 
to comment on this docket. We will consider all comments that we 
receive by February 22, 2000.

ADDRESSES: Please send your comment and three copies to: Docket No. 99-
075-2, Regulatory Analysis and Development, PPD, APHIS, Suite 3C03, 
4700 River Road, Unit 118, Riverdale, MD 20737-1238.
    Please state that your comment refers to Docket No. 99-075-2.
    You may read any comments that we receive on this docket in our 
reading room. The reading room is located in room 1141 of the USDA 
South Building, 14th Street and Independence Avenue, SW., Washington, 
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through 
Friday, except holidays. To be sure someone is there to help you, 
please call (202) 690-2817 before coming.
    APHIS documents published in the Federal Register, and related 
information, including the names of organizations and individuals who 
have commented on APHIS rules, are available on the Internet at http://
www.aphis.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Mr. Michael B. Stefan, Operations 
Officer, Invasive Species and Pest Management, PPQ, APHIS, 4700 River 
Road Unit 134, Riverdale, MD 20737-1236; (301) 734-8247.

SUPPLEMENTARY INFORMATION:

Background

    The Mexican fruit fly, Anastrepha ludens (Loew), is a destructive 
pest of citrus and many other types of fruit. The short life cycle of 
the Mexican fruit fly allows rapid development of serious outbreaks 
that can cause severe economic losses in commercial citrus-producing 
areas.
    The Mexican fruit fly regulations (contained in 7 CFR 301.64 
through 301.64-10 and referred to below as the regulations) were 
established to prevent the spread of the Mexican fruit fly to 
noninfested areas of the United States. The regulations impose 
restrictions on the interstate movement of regulated articles from 
regulated areas.
    Section 301.64-3 provides that the Deputy Administrator for Plant 
Protection and Quarantine (PPQ), Animal and Plant Health Inspection 
Service (APHIS), shall list as a regulated area each quarantined State, 
or each portion of a quarantined State, in which the Mexican fruit fly 
has been found by an inspector, in which the Deputy Administrator has 
reason to believe the Mexican fruit fly is present, or that the Deputy 
Administrator considers necessary to regulate because of its proximity 
to the Mexican fruit fly or its inseparability for quarantine 
enforcement purposes from localities in which the Mexican fruit fly 
occurs.
    Less than an entire quarantined State will be designated as a 
regulated area only if the Deputy Administrator determines that the 
State has adopted and is enforcing a quarantine or regulations that 
impose restrictions on the intrastate movement of regulated articles 
that are substantially the same

[[Page 71268]]

as those that are imposed with respect to the interstate movement of 
the articles and the designation of less than the entire State as a 
regulated area will otherwise be adequate to prevent the artificial 
interstate spread of the Mexican fruit fly.
    In an interim rule effective September 22, 1999, and published in 
the Federal Register on September 28, 1999 (64 FR 52211-52212, Docket 
No. 99-075-1), we designated an area in San Bernardino and Riverside 
Counties, CA, as a regulated area.
    Recent trapping surveys by inspectors of California State and 
county agencies and by inspectors of PPQ reveal that a portion of San 
Diego and Riverside Counties, CA, is infested with the Mexican fruit 
fly. Specifically, since October 12, 1999, inspectors have detected 
Mexican fruit flies in the Fallbrook area of San Diego and Riverside 
Counties, CA.
    Accordingly, to prevent the spread of the Mexican fruit fly to 
noninfested areas of the United States, we are amending the regulations 
in Sec. 301.64-3(c) by designating an area in San Diego and Riverside 
Counties, CA, as a regulated area. The regulated area is described in 
the rule portion of this document.
    There does not appear to be any reason to designate any other 
portion of the quarantined State of California as a regulated area. 
Officials of State agencies of California are conducting an intensive 
Mexican fruit fly eradication program in the regulated areas in 
California. Also, California has adopted and is enforcing regulations 
imposing restrictions on the intrastate movement of certain articles 
from the regulated areas that are substantially the same as those 
imposed with respect to the interstate movement of regulated articles.
    The Mexican fruit fly is not known to occur in the continental 
United States outside of the regulated areas in California and Texas.

Treatments

    Section 301.64-10 of the regulations lists treatments for regulated 
articles. Regulated articles treated in accordance with this section 
may be moved interstate from a regulated area to any destination. 
Section 301.64-10 contains treatments for specified fruits, treatments 
for soil within the dripline of plants producing specified fruits, and 
treatments for premises (fields, groves, or areas) that are within a 
quarantined area but outside the infested core area.
    In accordance with Sec. 301.64-10(c), premises that are located 
within the regulated area but outside the infested core area, and that 
produce regulated articles, must receive regular treatments with 
malathion bait spray. We are amending Sec. 301.64-10(c) to include a 
new alternative chemical treatment for premises. The new chemical 
treatment is a spinosad bait spray. Without spinosad bait spray, the 
only treatment made available by the regulations for premises has been 
malathion bait spray. Spinosad bait spray must be applied by aircraft 
or ground equipment at a rate of 0.01 oz of a USDA-approved spinosad 
formulation and 48 oz of protein hydrolysate per acre. For ground 
applications, the mixture may be diluted with water to improve 
coverage.
    We are also amending Sec. 301.64-10 to add provisions for cold 
treatment of citrons, litchis, longans, persimmons, and white zapotes. 
In the PPQ Treatment Manual, which is incorporated by reference into 
the Code of Federal Regulations (CFR), we list a cold treatment that is 
effective for Mexican fruit fly for several commodities. We also want 
to allow a cold treatment that is not listed in the PPQ Treatment 
Manual. Therefore, we are adding a new paragraph (f) to Sec. 301.64-10 
to state that citrons, litchis, longans, persimmons, and white zapotes 
may be cold treated in accordance with the PPQ Treatment Manual and in 
accordance with a treatment schedule described in paragraph (f).

Regulated Articles

    Section 301.64-2 of the regulations lists articles that are 
regulated for the Mexican fruit fly. Kumquats are on the list of 
regulated articles because kumquats are known hosts to some species of 
Anastrepha. After reviewing scientific data, APHIS has determined that 
kumquats are not a host to the Mexican fruit fly. Therefore, we are 
removing kumquats from the list of regulated articles. This action will 
relieve unnecessary restrictions on the movement of kumquats from 
regulated areas.

Emergency Action

    The Administrator of the Animal and Plant Health Inspection Service 
has determined that an emergency exists that warrants publication of 
this interim rule without prior opportunity for public comment. 
Immediate action is necessary to prevent the Mexican fruit fly from 
spreading to noninfested areas of the United States.
    Because prior notice and other public procedures with respect to 
this action are impracticable and contrary to the public interest under 
these conditions, we find good cause under 5 U.S.C. 553 to make this 
action effective less than 30 days after publication. We will consider 
comments that are received within 60 days of publication of this rule 
in the Federal Register. After the comment period closes, we will 
publish another document in the Federal Register. The document will 
include a discussion of any comments we receive and any amendments we 
are making to the rule as a result of the comments.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. For this 
action, the Office of Management and Budget has waived its review 
process required by Executive Order 12866.
    Under the Plant Quarantine Act and the Federal Plant Pest Act (7 
U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, and 164-167), the 
Secretary of Agriculture is authorized to regulate the interstate 
movement of articles to prevent the spread of injurious plant pests in 
the United States.
    In accordance with 5 U.S.C. 603, we have performed an initial 
regulatory flexibility analysis, which is set out below, regarding the 
effects of this interim rule on small entities. We do not currently 
have all the data necessary for a comprehensive analysis of the effects 
of this interim rule on small entities. Therefore, we are inviting 
comments concerning potential effects. In particular, we are interested 
in determining the number and kind of small entities that may incur 
benefits or costs from the implementation of this interim rule.
    This action amends the Mexican fruit fly regulations by adding a 
portion of San Diego and Riverside Counties, CA, to the list of areas 
regulated because of the Mexican fruit fly. This action is necessary on 
an emergency basis to prevent the spread of the Mexican fruit fly into 
noninfested areas of the United States. We are also amending the 
regulations to provide for the use of a new alternative chemical 
treatment for premises and for the use of a cold treatment for citrons, 
litchis, longans, persimmons, and white zapotes, which are regulated 
articles. This new treatment option will minimize the effect of 
restrictions on the interstate movement of regulated articles from 
regulated areas. We are also removing kumquats from the list of 
regulated articles. We have determined that kumquats do not pose a risk 
of hosting the Mexican fruit fly.

Newly Regulated Area

    This rule restricts the interstate movement of regulated articles 
from a portion of San Diego and Riverside

[[Page 71269]]

Counties, CA. Within the regulated area there are approximately 2,000 
growers operating on 11,400 acres (72 square miles), 38 packing houses, 
50 fruit sellers, and 2 farmer's markets that may be affected by the 
regulations. Those entities that move regulated articles interstate 
will have to comply with the regulations concerning certification and 
treatment. There are various relatively low cost treatments available, 
which in most cases will allow interstate movement of regulated 
articles.

Spinosad Bait Spray

    Currently, growers have an option to treat the premises that are 
within the quarantined area but outside the infested core area and that 
produce regulated articles with regular treatments of malathion bait 
spray. This rule provides for the additional treatment alternative of 
spinosad bait spray for these premises. Growers and nurseries in all 
regulated areas may be affected by this change. However, because the 
cost for applying spinosad bait spray is comparable to the cost for 
applying the currently available malathion bait spray, entities will be 
little affected.

Cold Treatment

    This rule also adds provisions for cold treatment of persimmons, 
longans, litchis, citrons, and white zapotes to qualify them for 
interstate movement from the regulated areas. Previously, no treatment 
was listed in the regulations for these fruits. In the regulated area 
in 1998, approximately $860,000 worth of persimmons were grown on 286 
acres. We do not have information on the number of growers or value of 
longans, litchi, citron, or white zapotes grown in the regulated area, 
but the numbers are likely to be very small.
    Cold treatment may take place in a refrigerated container which can 
be leased for approximately $65 per day. Using the container for 26 
days (20 days of treatment and 6 days of preparation) would cost 
$1,690. Assuming that there are 800 flats of persimmons in one of these 
refrigerated containers, the cold treatment would add $2.11 to the cost 
of each flat of persimmons. Cold treatment may also take place at an 
approved facility, which would likely be less costly. Additionally, 
cold storage for the preparation of persimmons for market is a common 
practice; therefore, the treatment may add little additional cost 
(measures such as closer monitoring of temperature or better sealing of 
the facility may be required). Cold treatment allows the fruit to be 
shipped interstate to markets outside the regulated area.
    The alternative to this interim rule was to make no changes in the 
regulations. After consideration, we rejected this alternative because 
if no action was taken, the Mexican fruit fly would spread to 
noninfested areas of the continental United States.
    This interim rule contains no information collection or 
recordkeeping requirements.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This interim rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts all State and local laws 
and regulations that are inconsistent with this rule: (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

National Environmental Policy Act

    An environmental assessment and finding of no significant impact 
have been prepared for this interim rule. The assessment provides a 
basis for the conclusion that the methods employed to eradicate the 
Mexican fruit fly will not have a significant impact on the quality of 
the human environment. Based on the finding of no significant impact, 
the Administrator of the Animal and Plant Health Inspection Service has 
determined that an environmental impact statement need not be prepared.
    The environmental assessment and finding of no significant impact 
were prepared in accordance with: (1) The National Environmental Policy 
Act of 1969, as amended (NEPA) (42 U.S.C. 4321 et seq.), (2) 
regulations of the Council on Environmental Quality for implementing 
the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA 
regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA 
Implementing Procedures (7 CFR part 372).
    Copies of the environmental assessment and finding of no 
significant impact are available for public inspection at USDA, room 
1141, South Building, 14th Street and Independence Avenue, SW., 
Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, 
except holidays. Persons wishing to inspect copies are requested to 
call ahead on (202) 690-2817 to facilitate entry into the reading room. 
In addition, copies may be obtained by writing to the individual listed 
under FOR FURTHER INFORMATION CONTACT.

Paperwork Reduction Act

    This interim rule contains no information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects in 7 CFR Part 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.
    Accordingly, we are amending 7 CFR part 301 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

    1. The authority citation for part 301 continues to read as 
follows:

    Authority: 7 U.S.C. 147a, 150bb, 150dd, 150ee, 150ff, 161, 162, 
and 164-167; 7 CFR 2.22, 2.80, and 371.2(c).


Sec. 301.64-2  [Amended]

    2. In Sec. 301.64-2, paragraph (a), the regulated article ``Kumquat 
(Fortunella japonica)'' is removed.
    3. In Sec. 301.64-3, paragraph (c), the entry for California is 
amended by adding an entry for San Diego and Riverside Counties, in 
alphabetical order, to read as follows:


Sec. 301.64-3  Regulated areas.

* * * * *
    (c) * * *
California
* * * * *
    San Diego and Riverside Counties. That portion of San Diego and 
Riverside Counties in the Fallbrook area bounded by a line drawn as 
follows: Beginning at the intersection of Rainbow Glen Road and 
Interstate Highway 15; then southwest along Interstate Highway 15 to 
Old Highway 395; then west and south along Old Highway 395 to 
Canonita Drive; then west along Canonita Drive to Tecalote Drive; 
then south along Tecalote Drive to Puerta Del Mundo; then northwest 
along Puerta Del Mundo to Peony Drive; then west along Peony Drive 
to Citrus Lane; then south along Citrus Lane to Citrus Drive; then 
south along Citrus Drive to Wilt Road; then west along Wilt Road to 
Laketree Drive; then southwest along Laketree Drive to Gird Road; 
then south along Gird Road to Knottwood Way; then west along 
Knottwood Way to Genista Place; then south along Genista Place to 
Brushwood Lane; then west and south along Brushwood Lane to Staghorn 
Court; then southwest along an imaginary line to the intersection of 
Linda Vista Drive and Via Monserate; then west along Via Monserate 
to Ramona Drive; then south along Ramona Drive to Hillrise Road; 
then west along Hillrise Road to La Canada Road; then west along La 
Canada Road to South Mission

[[Page 71270]]

Road; then southwest along an imaginary line to the east end of 
Shady Hill Lane; then west along Shady Hill Lane to Gateview Drive; 
then southwest along Gateview Drive to Olive Hill Road; then north 
along Olive Hill Road to Morro Hills Road; then west along Morro 
Hills Road to Sleeping Indian Road; then west along Sleeping Indian 
Road to Conejo Road; then northwest along an imaginary line to the 
intersection of Fallbrook Road and Vandergrift Boulevard; then west 
along Vandergrift Boulevard to Camp De Luz Road; then north along 
Camp De Luz Road to the intersection of the boundary line for the 
Camp Pendleton Marine Corps Base and De Luz Road; then northeast 
along De Luz Road to Daily Road; then northeast along Daily Road to 
Lynda Road; then northeast along Lynda Road to Sandia Creek Drive; 
then east and south along Sandia Creek Drive to Rock Mountain Drive; 
then east along Rock Mountain Drive to the Riverside/San Diego 
County line; then southeast along an imaginary line to the 
intersection of Stage Coach Lane and the Riverside/San Diego County 
line; then east along the Riverside/San Diego County line to the 
second unnamed road (near gate); then south along the second unnamed 
road (near gate) to Rainbow Glen Road; then southeast along Rainbow 
Glen Road to the point of beginning.
* * * * *
    4. Section 301.64-10 is amended as follows:
    a. Paragraph (c) is revised to read as set forth below.
    b. A new paragraph (f) is added to read as set forth below.


Sec. 301.64-10  Treatments.

* * * * *
    (c) Premises. A field, grove, or area that is located within the 
quarantined area but outside the infested core area, and that produces 
regulated articles, must receive regular treatments with either 
malathion or spinosad bait spray. These treatments must take place at 
6-to 10-day intervals, starting a sufficient time before harvest (but 
not less than 30 days before harvest) to allow for completion of egg 
and larvae development of the Mexican fruit fly. Determination of the 
time period must be based on the day degrees model for Mexican fruit 
fly. Once treatment has begun, it must continue through the harvest 
period. The malathion bait spray treatment must be applied by aircraft 
or ground equipment at a rate of 2.4 oz of technical grade malathion 
and 9.6 oz of protein hydrolysate per acre. The spinosad bait spray 
treatment must be applied by aircraft or ground equipment at a rate of 
0.01 oz of a USDA-approved spinosad formulation and 48 oz of protein 
hydrolysate per acre. For ground applications, the mixture may be 
diluted with water to improve coverage.
* * * * *
    (f) Citrons, litchis, longans, persimmons, and white zapotes. Cold 
treatment in accordance with the PPQ Treatment Manual (for full 
identification of this standard, see Sec. 300.1 of this chapter, 
``Materials incorporated by reference'') and in accordance with the 
following schedule:

------------------------------------------------------------------------
                Treatment                         Exposure  period
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33  deg.F or below.......................  18 days.
34  deg.F or below.......................  20 days.
35  deg.F or below.......................  22 days.
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    Done in Washington, DC, this 14th day of December 1999.
Craig A. Reed,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 99-33059 Filed 12-20-99; 8:45 am]
BILLING CODE 3410-34-U